Citation Nr: 1326635 Decision Date: 08/21/13 Archive Date: 08/29/13 DOCKET NO. 10-08 411A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for mechanical low back strain, hereafter referred to as a low back disorder. 2. Entitlement to service connection for a low back disorder, to include as secondary to service-connected left ankle fracture with degenerative changes and degenerative joint disease of the left and right knees. 3. Entitlement to service connection for restless leg syndrome, to include as secondary to a low back disorder. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Barner, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1973 to September 1995. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. The Veteran was afforded a July 2012 videoconference hearing before the Board. His representative has also made a subsequent written presentation. In July 2012 additional evidence along with a waiver of review by the agency of original jurisdiction was received, such that the Board may proceed to adjudicate the appeal. FINDINGS OF FACT 1. In a May 2004 rating decision, the RO denied service connection for mechanical low back strain. The Veteran was notified and did not file a Substantive Appeal of that decision. 2. Evidence received since the May 2004 rating decision, by itself or when considered with evidence previously of record, relates to an unestablished fact necessary to substantiate the claim of service connection for mechanical low back strain, and therefore raises a reasonable possibility of substantiating the issue on appeal. 3. The evidence indicates that it is at least as likely as not that the Veteran's current low back disorder, diagnosed as degenerative disc disease and degenerative lumbar arthritis, is causally related to his service, and is caused or worsened by his ankle and knee disabilities. 4. The evidence indicates that it is at least as likely as not that the Veteran's restless leg syndrome characterized by symptoms to include tingling, pain and numbness in the legs, is related to his service, and is caused or worsened by his low back disorder. CONCLUSIONS OF LAW 1. The May 2004 rating decision that denied the Veteran's claim of entitlement to service connection for mechanical low back strain is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2012). 2. Evidence received since the May 2004 rating decision is new and material, and the claim of service connection for mechanical low back strain is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2012). 3. With resolution of reasonable doubt in the appellant's favor, the criteria for service connection for a low back disorder, claimed as mechanical low back strain and to include degenerative disc disease and degenerative lumbar arthritis have been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.304, 3.310 (2012). 4. With resolution of reasonable doubt in the appellant's favor, the criteria for restless leg syndrome, characterized by symptoms to include tingling, pain and numbness in the legs, have been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.304, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In light of the fully favorable determination in this case, no further discussion of compliance with VA's duties to notify and assist is necessary. New and Material Evidence Service connection for mechanical low back strain was most recently denied in an unappealed May 2004 rating decision. The decision was denied because there was no diagnosed condition or record of treatment. The Veteran was notified of the decision, and filed a Notice of Disagreement. A Statement of the Case was issued; however, he failed to file a Substantive Appeal. That decision is final. 38 U.S.C.A. § 7105 (West 2002). The claim may be reopened if new and material evidence is received. 38 U.S.C.A. § 5108 (West 2002). Reopening is required if newly submitted evidence, combined with VA assistance and considering the other evidence of record, would raise a reasonable possibility of substantiating the claim. Shade v. Shinseki, 24 Vet. App. 110, 120-21 (2010). Here, there is testimony from a July 2012 videoconference hearing and a June 2012 positive nexus opinion from Dr. Paula Wiese that is sufficient to reopen the claim as it raises a reasonable possibility of substantiating the claim. It is noted that the credibility of the evidence is presumed for the purposes of reopening the claim. Service connection The Veteran asserts that he has a current low back disorder as a result of a combination of factors to include a 1985 injury in service, jolts to his spine when riding in or jumping from tanks in service, as well as vibrations to his spine from use of tanks in service, and as caused or worsened by his knee and ankle disabilities. He reports continuing symptoms such as pain in his low back since service. The Veteran has submitted internet articles, to include from the Department of Veterans Affairs, addressing how regular exposure to whole body vibration may cause low back pain. Statements from his wife and coworker also attest to the Veteran's back symptoms. The Veteran asserts that he experiences restless leg syndrome due to service, to include as due to his low back disorder. He reports continuous symptoms since service, such as tingling sensation, pain and numbness as if his legs had fallen asleep. Personnel records confirm that the Veteran's military occupational specialty was as an Armor Senior Sergeant, and he served as a tank commander. Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131 (West 2002). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d) (2012). Service connection may also be awarded for certain disabilities, such as arthritis, which manifest to a compensable degree within a year of service separation. 38 U.S.C.A. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. That an injury incurred in service alone is not enough. There must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may be established on a secondary basis for disability which is proximately due to, or the result of, a service-connected disease or injury. See 38 C.F.R. § 3.310(a) (2012). Secondary service connection may also be established where a disability is aggravated by a service connected disability. 38 C.F.R. § 3.310(b); Allen v. Brown, 7 Vet. App. 439 (1995). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b). Here, the Veteran's contentions regarding reported symptomatology are considered competent and credible as they have been consistent and detailed. Medical records establish that the Veteran has a current low back disorder. October 2009 X-ray assessment was of mild degenerative lumbar arthritis. Medical records establish that the Veteran experiences restless leg syndrome symptoms, for which he was prescribed medication in May 2009. There is evidence suggesting in-service incurrence of a low back injury. In April 1985, the Veteran reported that he experienced back pain secondary to playing basketball. A slight spasm to the lumbar area was observed on toe touch to the floor. The Veteran was diagnosed as experiencing mechanical back pain. Treatment included medication, exercise, ice, and 24 hours in quarters. The Veteran has reported in-service incurrence of symptomatology regarding his legs. Service treatment records show that in May 1981 the Veteran reported experiencing pain running down his right leg (discussed in relation to treatment for hemorrhoids). There is persuasive medical evidence that the Veteran's current low back disorder is related to service, and is related to or worsened by his knee and ankle disabilities. Most recently, in June 2012, chiropractor, Paula Wiese, indicated that that she reviewed the Veteran's service treatment records, available medical records, and personal account of incidents involving trauma to his back. She indicated that the Veteran suffered a back injury while playing basketball, which was documented in service treatment records. In addition, throughout the remainder of his career there were numerous incidents where he was thrown about in the hatch of the tank, and constantly jarred from the impact of riding over rough terrain. The Veteran mentioned wearing a flak vest that would have provided some protection from jarring, but Dr. Wiese considered most of the damage to his spine to have already occurred. The Veteran reportedly self-treated through a variety of resources from creams to ice, to heat or medication. Dr. Wiese indicated that prior trauma was a common precipitating factor in development of osteoarthritis, which could result in degenerative disk disease. Dr. Wiese cited Up To Date commentary that "the initiating mechanism is damage to normal articular cartilage by physical forces, which can be either single events of macrotrauma or repeated microtrauma." She indicated that degeneration began with the first injury received, and could be compounded by mini-traumas, or accelerated from constant exposure to whole body vibration, such as that received sitting or standing on a hard metal surface of a tank. In addition, given the Veteran's arthritic knees and ankles, Dr. Wiese concluded that the Veteran would likely place added strain and stress on his spine, accelerate the degenerative disk condition, and "most likely be a major factor in the cause of the accompanying arthritis in his back." Given the Veteran's degenerative disk disease and arthritis, it would not be uncommon to see spinal canal narrowing, which could aggravate the spinal nerves and result in symptoms similar to those of restless leg syndrome. As such, Dr. Wiese opined that the restless leg syndrome was due to the Veteran's low back condition, and aggravation of the nerves in his low back. In sum, Dr. Wiese concluded with a degree of certainty greater than fifty percent she could ascertain that degenerative disk disease, accompanying arthritis and restless leg syndrome began from the Veteran's first injury in the military, because his spine was no longer properly aligned. She reasoned that continued jarring from riding in armored vehicles along with the effects of whole body vibration and stress on his back from overcompensation for his knees and ankles all contributed to his degenerative disk disease and accelerated the rate of degeneration. In addition, Dr. Wiese indicated that it was as likely as not that the injuries the Veteran received in service and his duties as an armored crewman caused his current low back pains, degenerative disk disease, arthritis and restless leg syndrome. In November 2010 Dr. Wiese considered a portion of the Veteran's service treatment records and his explanation of experiences as a tank crewman during service. Dr. Wiese reviewed a study conducted by Dupuis, H. and Zerlett, G., published in the International Archives of Occupational and Environmental Health in 1987. This study considered 352 operators of earth moving equipment and showed the most frequent and significant health impairment among the operators was lumbar syndrome. Dr. Wiese considered the study to mirror the whole body vibrations a tank crewman would be exposed to, and noted that lumbar syndrome covers all symptoms caused directly or indirectly by degenerative lesions of the lumbar disks. The conclusion of the study was that whole body vibration caused morphological changes in the lumbar spine. As such, Dr. Wiese concluded that the Veteran's lumbar neuritis and the start of degenerative disk disease was the result of long term exposure to whole body vibrations. Dr. Wiese opined that it was as likely as not that the Veteran's exposure to whole body vibrations as a tank crewman in service was the probable cause of his back problems. In addition, a December 2003 VA medical opinion diagnosed mechanical low back strain, and X-rays showed minimal lumbar spondylosis and right sacroiliac degenerative joint disease. This opinion indicated that it was at least as likely as not that the Veteran's back pain had originated since approximately 1985 due to his sports injury, and continued since then. The examiner wrote that when the Veteran walked a lot it bothered his knees and ankles, which would exacerbate back pain, such that the knees and ankles were less likely the cause of back pain, but could contribute to exacerbations of back discomfort with ambulation. There is also evidence suggesting that there is not a nexus between the Veteran's current low back disorder and service, or service-connected disabilities. A March 2004 clarification opinion from the examiner who provided the 2003 positive nexus opinion, differentiated his earlier opinion that relied on the Veteran's reports, and provided an opinion based solely on record review. The examiner indicated that review of the records showed only one instance in 1985 of recorded back pain, making it less likely that the Veteran's back pain was due to service, especially with one very isolated episode. This opinion is inadequate in that it discounts without further explanation or reasoning the Veteran's reported experiences with low back symptomatology in and since service, regardless of documentation. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). There is also a VA examination from October 2009 in which the examiner in one portion of the report references the Veteran's low back condition that developed early degenerative changes that coincided with his symptoms. The examiner however, went on to conclude that no evidence suggested injury in service was solely responsible, and there was no literature to suggest arthritis in the knees caused degenerative lumbar spine. A December 2009 addendum indicated that there was no evidence of aggravation, and no evidence the left ankle was the result of a low back condition. Another addendum indicated that it was less likely than not that the Veteran's low back condition was secondary to his knee or ankle, and also no evidence of aggravation. There was not appropriate discussion and consideration of the Veteran's reported symptomatology, to include his experiences as a tank crewman and commander. There is a June 2011 VA examination in which the examiner opined that the Veteran's current low back issues were more likely caused by his degenerative disk disease, which likely occurred over time. The examiner indicated that he could not find specific literature to support the Veteran's claim for mechanical low back strain being caused by whole body vibration, although he acknowledged related literature suggesting extended use of a jackhammer caused neurologic changes in the upper extremities. The examiner concluded that the Veteran's claim of mechanical low back strain secondary to whole body vibration was less likely as not the cause of his low back pain, and was more likely secondary to his degenerative disk disease of the spine. The examiner's opinion was not supported by an adequate rationale, especially in light of the submitted VA internet report recognizing that whole body exposure to vibration may cause low back pain and the November 2010 opinion from Dr. Wiese, which also cited to an article regarding whole body vibrations and low back pain. Dr. Wiese's private opinions are most probative because of the review of the relevant evidence, to include the Veteran's reported symptomatology, and complete rationale including citations to medical definitions and studies regarding whole body vibrations. As such, service connection for low back disorder (diagnosed as degenerative disc disease) is warranted. Evidence supporting a grant of service connection for restless leg syndrome includes a March 2011 opinion from Dr. Wiese providing the Taber's Cyclopedic Medical Dictionary definition of restless leg syndrome as a "condition of unknown etiology characterized by an intolerable creeping and internal itching sensation occurring in the lower extremities and causing an almost irresistible urge to move the leg." Dr. Wiese explained that the physiology and anatomy of the lumbar spine and lower extremities was directly related. Specifically spinal nerves from lumbar vertebrae one through five travelled caudally to innervate muscles of the lower extremities, and interference in lumbar nerve flow could cause sensations of pain, tingling, itching, burning, crawling or achiness in the legs and feet. In the Veteran's case, he had disc thinning and intervertebral foraminal narrowing at L2, L3, L4, and L5, which interfered with spinal nerves that innervated large muscles of the leg, associated with the sensations of restless leg syndrome. As such, the examiner indicated that there was a direct correlation between the Veteran's low back pain and restless leg syndrome, and that the Veteran had sustained injuries during service that caused the symptoms he experienced. The negative evidence consists of a June 2011 VA opinion in which the examiner indicated that restless leg syndrome most commonly had an unknown etiology, however, it was thought that there was a genetic component as it was found in families. The examiner indicated that there were other leading theories as to causation, but that there was absolutely no literature to support the fact that a mechanical low back pain would lead to restless leg syndrome. The examiner stated that he was unable to offer any opinion other than that it was less likely than not that the cause of the restless leg syndrome, which the Veteran was first diagnosed with in 2001, was related to his active duty, and there was no basis for aggravation. The June 2011 VA negative opinion indicating that there was no literature to support mechanical low back pain leading to restless leg syndrome, and no basis for aggravation, was considered. It is found less probative than the positive opinions of record. At the very least, there is an equipoise of evidence, such that reasonable doubt is resolved in the Veteran's favor. In light of the grant of service connection for the Veteran's low back disorder, and Dr. Wiese's medical opinion indicating that injuries sustained during service caused symptoms now experienced and noting the direct correlation between low back pain and restless leg syndrome, service connection for restless leg syndrome is warranted. The Veteran has been afforded resolution of reasonable doubt in his favor. ORDER New and material evidence having been received, the claim of service connection for mechanical low back strain, hereafter referred to as a low back disorder is reopened. Service connection for a low back disorder is granted. Service connection for restless leg syndrome is granted. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs